On the surface, the Virginia Court of Appeals' opinion in Town of Iron Gate v. Simpson, No. 1588-23-3 (Sep. 17, 2024) deals with a straightforward issue in a straightforward way: the property owner's inverse complaint adequately alleged that the Town's flooding of her property was for a public use, and thus properly survived the Town's demurrer.
As the Virginia Supreme Court has held, one of the elements of pleading a legally-adequate inverse condemnation complaint for flooding is an allegation that the flooding was for some public use. The court of appeals rejected the Town's argument that Simpson failed to allege public use, holding that the complaint's allegation that the Town "used her 'property as a 'makeshift storage site for excess stormwater,' which was accomoplished for the public use of maintaining and operating the Town's stormwater system[,]'" was certainly good enough:
She alleged that the Town “purposefully uses, operates, and maintains a stormwater system in a manner that directs storm water onto [her] property” and “purposefully declined to resolve the issues or to discontinue use of the [p]ipe, and has continued to intermittently direct stormwater through the [p]ipe for the public use of stormwater drainage, despite being fully-informed that the action will result in flooding to [her] property.” She alleged that the pipe was “part of the Town’s stormwater control system,” which was used to “direct, transport, and control the flow of stormwater,” that the Town had “full knowledge of the issues with the [p]ipe” dating back to 2011 when it “fitted a ‘boot’ on the pipe . . . to prevent leakage, but the repair was ineffective,” that the prior owner “informed the Town repeatedly of the problem,” that the Town “purposefully declined to resolve the issues or to discontinue use of the [p]ipe,” and that the Town admitted the problem “should have been dealt with a long time ago,” yet continued to use the pipe.
Slip op. at 10. Seems pretty obvious to us, too.
But we urge you to read the entire opinion (it isn't that long, a mere 18 pages) to get an understanding of how the Town acted here. If you are like us, you will come away from it thinking "what gives?" The picture the opinion paints isn't a good one: the government appeared to be obstreperous, and intent on making the conduct of the litigation hell for the property owner, despite the just compensation here being only $37,586. A significant amount for sure, but not worth going to war over.
Yet to us, that it what is appears the Town did. It claimed the trial judge was biased. Its questioning of the owner's appraiser was riddled with inappropriate questions based on facts not in evidence (that the Town tried to mitigation). The Town seemed to blame the owner for the problem by trying to create a narrative that the owner didn't give the Town time to fix the issue; the Town claimed to be ever-so-ready to fix it, but didn't do so and apparently never has. Read the opinion for more.
As a result, the Town got whacked for $206,785 in fees and costs, more than five times the amount of compensation. Forest and trees, anyone?
Congratulations to friend and colleague Joshua Baker for the win.
Town of Iron Gate v. Simpson, No. 1588-23-3 (Va. Ct. App. Sep. 17, 2024)
